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Nautilus Ins. Co. v. Dubin & Associates

December 29, 2011

NAUTILUS INS. CO.
v.
DUBIN & ASSOCIATES, INC.



Name of Assigned Judge Harry Sitting Judge if Other or Magistrate Judge D. Leinenweber than Assigned Judge

CASE TITLE

DOCKET ENTRY TEXT

For the reasons stated, Dubin & Associates, Inc.'s Motion to Dismiss the Amended Complaint, or in the Alternative for Judgment on the Pleadings [37] is denied. Dubin is ordered to answer the Complaint within 30 days from the date of this Order. Status hearing set for 2/15/2012 at 9:00 a.m.

O[ For further details see text below.] Notices mailed by Judicial staff.

STATEMENT

Before the Court is Dubin & Associates, Inc.'s ("Dubin") Motion to Dismiss Nautilus Ins. Co.'s ("Nautilus") Amended Complaint. For the reasons stated, the motion is denied.

This is Dubin's second motion to dismiss Nautilus' Complaint for a declaratory judgment in this insurance coverage dispute. Previously, this Court granted Dubin's motion to dismiss under Fed. R. Civ. P. 12(b)(1) because Nautilus failed to plead facts sufficient to establish subject-matter jurisdiction. See Nautilus Ins. Co. v. Dubin & Assocs., Inc., No. 11 C 1251, 2011 WL 3664997, at *1 (N.D. Ill. Aug. 19, 2011).

Because the Court laid out the facts in that opinion, it will restate them only briefly here. Nautilus issued to Dubin an insurance policy (the "Nautilus policy") that was effective from April 14, 2004 to April 14, 2005. The Nautilus policy contains an "Employee Exclusion" barring coverage for any bodily injury that occurs to "an employee of the insured arising out of and in the course of: (a) employment by the insured; or

(b) performing duties related to the conduct of the insured's business." The endorsement defines "employee" as "includ[ing], but is not limited to, any persons hired by, loaned to, leased to, contracted for, or volunteering services to the insured, whether or not paid by the insured."

In 2006, Willie Wakefield filed a negligence lawsuit against Dubin in the Circuit Court of DuPage County, Ill. Wakefield's suit alleges that in March 2005 Dubin was the general contractor on a construction project in Chicago. Wakefield, who worked for a subcontractor, was injured during the course of the project.

I. BACKGROUND

Nautilus, which is not named in the Complaint, seeks a declaratory judgment in this Court to determine whether it has a duty to defend or indemnify Dubin in the Wakefield litigation. Because this Court found that Nautilus' original Complaint was too vague to establish the existence of an actual controversy, it dismissed that Complaint. Nautilus has since re-pleaded its Complaint and added the following allegations:

(1) that Nautilus has inquired of Dubin as to whether it wants Nautilus to participate in the defense of the Wakefield lawsuit; (2) Dubin has told Nautilus that it wants Nautilus to continue to participate in the defense of the Wakefield lawsuit; and (3) Nautilus contends that it should not be required to do so. Pl.'s Comal. § 25--27.

Dubin moves to dismiss the Amended Complaint pursuant to Fed. R. Civ. P. 12(b)(6), arguing that the Complaint fails to state a claim upon which relief can be granted because it does not contain an allegation that Nautilus reserved its right to deny coverage. In the alternative, Dubin moves for judgment on the pleadings under Fed. R. Civ. P. 12(c). In essence, Dubin argues that Nautilus' Complaint is too vague without an allegation of reservation of rights ...


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